{"id":244056,"date":"2021-02-19T11:30:27","date_gmt":"2021-02-19T06:00:27","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=244056"},"modified":"2021-02-26T12:34:35","modified_gmt":"2021-02-26T07:04:35","slug":"carry-bags","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2021\/02\/19\/carry-bags\/","title":{"rendered":"Ker HC | Perception that non-compostable plastic are being passed off as compostable ones is not backed by research; HC uplifts the ban on compostable plastic bags"},"content":{"rendered":"

Kerala High Court: <\/strong>A.K. Jaya Sankaran Nambiar, J., addressed an interesting case challenging the legality of government Order that banned the use of Compostable plastic carry bags.<\/p>\n

Facts in Brief <\/strong><\/span><\/p>\n

The State, by invoking powers delegated to it by Central government under Environment Protection Act issued had an order banning the manufacture, stocking and sale of single-use plastic\/one-time-use plastic in the state of Kerala with effect from 01-01-2020. While doing so, articles made from compostable plastic were initially excluded from the purview of the ban order. However, through subsequent orders, the state had brought certain types of carry bags made from compostable plastic within the purview of the ban, with the view that a huge number of carry bags made from non-compostable plastic were being passed off as compostable ones.<\/p>\n

The petitioners, who were engaged either in the manufacture or distribution or both, of \u2018compostable carry bags\u2019, had necessary licenses and consents under various regulatory statutes for the manufacture and\/or distribution of \u2018compostable plastic carry bags\u2019 as defined under the Plastic Waste Management Rules, 2016 framed by \u00a0Central government under Environment Protection Act, 1986. The question before the Court was,<\/p>\n

Whether this Court would be justified in invoking its powers of judicial review under Article 226 of our Constitution, to interfere with the policy decision of the State Government? <\/u><\/p>\n

Contours of Judicial Review <\/strong><\/span><\/p>\n

The Court, while tracing the scope of judicial review expressed that in England it was fairly well established that judicial review was nothing more than a means adopted by courts to uphold the rule of law in a modern-day democratic republic. Judicial review is no longer seen based solely on principles of statutory interpretation, but on the application of some general principles of good administration to the exercise of power, irrespective of the source of that power.<\/p>\n

While exercising the power of judicial review the court substitutes its view for that of the decision-maker but only where the court finds that such a course is necessary to uphold the rule of law, or where the decision of the public authority is grossly disproportionate when compared to the object sought to be achieved through the decision concerned. The Bench expressed,<\/p>\n

\n

\u201cWhen constitutional rights are at stake, the overriding public interest involved in the protection of such rights justifies the courts\u2019 resort to a heightened scrutiny and balancing of views through the application of the doctrine of proportionality.\u201d <\/strong><\/p>\n<\/blockquote>\n

\u00a0<\/strong>Reliance was placed by the Court on Huang v Secretary of State for the Home Department, <\/a><\/em>[2007] 2 WLR 581<\/a>, wherein <\/a><\/em><\/strong>a three-limb test was propounded by the Privy Council to be applied when deciding whether an interference with a particular human right is proportionate:<\/p>\n